Com. v. Marty, T. ( 2017 )

J-S46021-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
THOMAS RICHARD MARTY,
Appellant No. 173 MDA 2017
Appeal from the Judgment of Sentence December 2, 2016
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0001394-2016
BEFORE: BOWES, J., OLSON, J., and STEVENS, P.J.E.*
MEMORANDUM BY OLSON, J.: FILED SEPTEMBER 18, 2017
Appellant, Thomas Richard Marty, appeals from the judgment of
sentence entered on December 2, 2016, as made final by the denial of
Appellant’s post-sentence motion on December 21, 2016. We affirm.
In 2015, Appellant was arrested and charged with a number of crimes,
including driving under the influence of alcohol (“DUI”). During Appellant’s
bench trial, the Commonwealth presented the testimony of witness Matthew
Scalzo and Lancaster Police Officer Jason Wendlebeck.
Mr. Scalzo testified that, at around 12:30 a.m. on October 3, 2015, he
was operating his vehicle on New Holland Avenue, in Lancaster. Mr. Scalzo
testified that he was stopped at a traffic light, with his turn signal and lights
on, and was waiting to turn into a parking lot when a vehicle, being driven
by Appellant, crashed into the rear-end of his car. N.T. Trial, 12/2/16, at 4-
* Former Justice specially assigned to the Superior Court.
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6. The collision “totaled” Mr. Scalzo’s car and rendered the car inoperable.
Id. at 6.
Mr. Scalzo testified that he and Appellant exited their cars and spoke;
upon interacting with Appellant, Mr. Scalzo noticed that Appellant “appeared
to be intoxicated.” Id. at 13. Further, Mr. Scalzo testified that, “when the
first officer showed up[, the officer asked Appellant] . . . if he was drinking
that night and he said yes.” Id.
Lancaster Police Officer Jason Wendlebeck testified that he responded
to the accident involving Appellant and Mr. Scalzo. Officer Wendlebeck
testified that, when he arrived on the scene, he noticed heavy damage to
the rear of Mr. Scalzo’s vehicle and to the front of Appellant’s vehicle;
further, Officer Wendlebeck noticed “[n]o skid marks on the road, no ABS
marks to indicate that there was any try to stop.” Id. at 16. As Officer
Wendlebeck testified:
When I initially saw [Appellant], . . . he was swaying back
and forth. He seemed unbalanced on his feet.
As I approached, I was approximately 3 feet away from
[Appellant] and I did detect an odor of alcoholic beverage
upon his breath, upon his person. As I began speaking with
him, I asked initially what had happened [a]nd his
statement was, I tried to make the right and I didn’t make
it.
I was sort of taking it in. I recognized he had glassy,
bloodshot eyes. He did slur his speech as he spoke to me .
. . [and] when he did speak, he had a thick tongue. Several
of the words, as we spoke with each other, were mumbled.
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And I did ask him if he had been drinking. He said yes, I
had at least three beers. I assumed, based on his
presentation, his motor skills, that he actually consumed
probably quite a bit more than that.
At that time, I requested another officer to come to the
scene so I [could] perform standardized field sobriety tests.
It was several moments – minutes actually – until that
other officer arrived. During that time, I began filling out
the accident forms, and I just observed [Appellant], and he
continued to, as Mr. Scalzo said, he was just staggering
about on the sidewalk. He was kicking objects, headlamp,
just debris that was in the roadway. . . .
Through that interaction, as I was waiting for the other
officer to arrive, [Appellant] made several unintelligible
statements. There was a little grumbling, some cursing at
times. He wasn’t making a whole lot of sense. He was kind
of scatter-brained.
Id. at 15-18 (some internal paragraphing omitted).
When the second officer arrived on the scene, Officer Wendlebeck
requested that Appellant submit to the field sobriety tests. At that point,
Appellant began to complain of head and neck injuries and, as a result of
Appellant’s complaints, Officer Wendlebeck requested the aid of an
ambulance. Further, because of Appellant’s complaints, Officer Wendlebeck
was unable to perform the field sobriety tests. Id.
The ambulance transported Appellant to Lancaster General Hospital.
While in the hospital, Officer Wendlebeck requested that Appellant submit to
a blood draw, to test his blood alcohol content. Officer Wendlebeck testified
that, while he read Appellant the PennDOT DL-26 form, Appellant “was
screaming throughout the entire reading of the form and just very – just
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inappropriate words and language throughout the hospital as I read it to
him.” Id. at 19. Appellant then refused the requested blood draw. Id.
Officer Wendlebeck further testified that, while they were in the
hospital, he observed Appellant and came to the conclusion that Appellant
“had imbibed a very large amount of alcoholic beverage.” Id. at 20. Officer
Wendlebeck testified:
[Appellant] had glassy, bloodshot eyes. He had slurred
speech. He mumbled. He did not have fine motor skills.
He staggered about. He was off his balance. He would tip
from one way to the other. He was incoherent, rambling
through the several-minute period. He had a wide range of
mood swings and emotions, and he had a very strong odor
of alcoholic beverage. I [could] smell it from at least 3 feet
away.
Id.
Appellant also testified at the trial. According to Appellant: the
accident occurred because Mr. Scalzo’s vehicle “didn’t have [its] lights on;”
he never spoke with Mr. Scalzo after the accident; he only admitted to
Officer Wendlebeck that he had drunk “[a c]ouple of beers earlier;” he
believed “the effects of [the] alcohol had dissipated by the time he got
behind the wheel of the car;” and, his “glassy eyes” and “mumbling” were
caused by the accident, not intoxication. Id. at 32, 33, and 42.
The trial court found Appellant guilty of DUI (general impairment) and
the summary offense of following too closely.1 On December 2, 2016, the
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1
75 Pa.C.S.A. §§ 3802(a)(1) and 3310(a), respectively.
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trial court sentenced Appellant to serve five days to six months in jail for the
DUI conviction. N.T. Trial, 12/2/16, at 48.
Appellant filed a timely post-sentence motion and claimed that the trial
court’s verdict was against the weight of the evidence because “the evidence
that [Appellant’s] behavior was a result of being in a car accident was
substantially stronger than the claims that he was intoxicated to the degree
that he could not operate a vehicle safely.” Appellant’s Post-Sentence
Motion, 12/12/16, at 3.
The trial court denied Appellant’s post-sentence motion on December
21, 2016 and Appellant filed a timely notice of appeal.
Appellant raises one claim on appeal:
Did the trial court abuse its discretion in finding that the
verdict of guilty of [DUI] was not against the weight of the
evidence where there was significant evidence that
[Appellant’s] indicia of being under the influence of alcohol
were attributable to other, innocuous factors?
Appellant’s Brief at 6.
As our Supreme Court has explained:
a verdict is against the weight of the evidence only when
the [factfinder’s] verdict is so contrary to the evidence as to
shock one’s sense of justice. It is well established that a
weight of the evidence claim is addressed to the discretion
of the trial court. A new trial should not be granted because
of a mere conflict in the testimony or because the judge on
the same facts would have arrived at a different conclusion.
Rather, the role of the trial court is to determine that
notwithstanding all the evidence, certain facts are so clearly
of greater weight that to ignore them, or to give them equal
weight with all the facts, is to deny justice. A motion for a
new trial on the grounds that the verdict is contrary to the
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weight of the evidence concedes that there is sufficient
evidence to sustain the verdict; thus the trial court is under
no obligation to view the evidence in the light most
favorable to the verdict winner.
Significantly, in a challenge to the weight of the evidence,
the function of an appellate court on appeal is to review the
trial court’s exercise of discretion based upon a review of
the record, rather than to consider de novo the underlying
question of the weight of the evidence. In determining
whether this standard has been met, appellate review is
limited to whether the trial judge’s discretion was properly
exercised, and relief will only be granted where the facts
and inferences of record disclose a palpable abuse of
discretion. It is for this reason that the trial court’s denial of
a motion for a new trial based on a weight of the evidence
claim is the least assailable of its rulings.
Commonwealth v. Rivera, 983 A.2d 1211, 1225 (Pa. 2009) (internal
quotations and citations omitted). “An abuse of discretion is not merely an
error of judgment, but is rather the overriding or misapplication of the law,
or the exercise of judgment that is manifestly unreasonable, or the result of
bias, prejudice, ill-will or partiality, as shown by the evidence of record.”
Commonwealth v. Serrano, 61 A.3d 279, 290 (Pa. Super. 2013) (internal
quotations and citations omitted).
On appeal, Appellant claims that the trial court erred when it denied
his weight of the evidence claim because “[t]he facts presented on the
record more strongly support that the alleged indicia of intoxication were
actually innocuous byproducts of the accident, not indicators of actual
intoxication.” Appellant’s Brief at 12. This argument clearly fails. As the
trial court explained:
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At [Appellant’s] trial, the Commonwealth presented the
testimony of two witnesses who provided the [trial] court
with ample testimony detailing [Appellant’s] appearance of
intoxication. Most notably, [Appellant], who had crashed
his car, had slurred speech, glassy eyes, and an irritable
demeanor. Further, when advised that he was going to be
required to perform a field sobriety test, [Appellant] only
then complained of head and neck injuries and a field
sobriety test was not performed. The [trial] court was
presented [with] testimony that [Appellant] was muttering
inaudible words and kicking parts from his car on the street,
evidence that the [trial] court believed showed [Appellant’s]
intoxication. The police officer who responded to the scene
of [Appellant’s] crash testified that he detected a strong
odor of alcoholic beverages on [Appellant], and described to
the [trial] court [Appellant’s] unruly behavior when
[Appellant] was made aware that he could not leave the
hospital and that his blood needed to be drawn. Moreover,
the [trial] court heard the testimony of [Appellant], in which
he admitted that he had consumed alcohol prior to driving
his automobile. After hearing the testimony and reviewing
the evidence, the [trial] court arrived at the conclusion that
[Appellant] drove under the influence of alcohol.
Trial Court Opinion, 5/22/17, at 2 (some internal capitalization omitted).
We agree with the trial court’s cogent analysis and conclude that the
trial court did not abuse its discretion when it denied Appellant’s weight of
the evidence challenge. Therefore, Appellant’s claim on appeal fails.
Judgment of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/18/2017
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